by Jay Bookman, Georgia Recorder [This article first appeared in the Georgia Recorder, republished with permission]

February 15, 2023

There will be indictments.

They are coming at the federal level – you don’t subpoena a former vice president in a high-profile criminal case unless and until prosecutions are likely — and they are coming at the state level here in Georgia.

At least, I think so.

That prediction is not based on leaks. To their credit, both the state and federal investigations into the attempt to subvert the 2020 presidential election have been extremely disciplined and protective of the rights of those they are investigating. They show every sign of appropriate caution and attention to detail, as a prosecution of this gravity requires. Every step, every decision that special counsel Jack Smith and Fulton County District Attorney Fani Willis take will be subject to close scrutiny, in the courts and in public discourse, and they seem to recognize that reality. So doing it right is much more important than doing it fast.

But like the subpoena issued to Vice President Mike Pence, some pieces of the end game are already coming into view.

Earlier this week, for example, Fulton County Superior Court Judge Robert McBurney temporarily barred release of much of a report by the special grand jury empaneled by Willis. (Select parts of the report will be released Thursday.) In explaining his decision, McBurney made some telling points.

Having reviewed that final report, the judge writes, “(The special grand jury) provided the district attorney with exactly what she requested: a roster of who should (or should not) be indicted, and for what, in relation to the conduct and the aftermath of the 2020 general election in Georgia.”

It’s hard to imagine McBurney writing that sentence knowing that no indictments had been recommended.

Furthermore, in ordering much of that report withheld for the time being, McBurney explained that “potential future defendants were not able to present evidence” to the special grand jury and thus have due-process rights that the typical one-sided grand-jury process is not designed to protect. 

“This is particularly true if the grand jury’s final report includes recommendations involving individuals who never appeared before the grand jury and so had no opportunity, limited or not, to be heard,” McBurney wrote.

Among those who never appeared before the grand jury, and thus never got a chance to explain his actions, was Donald Trump.

It is still possible that the special grand jury, comprised of lay citizens, has recommended indictments that Willis, as an attorney and officer of the court, is not prepared to pursue. Much as I hate to admit it, a prosecution of Trump based solely on what is already on the public record would not be the easy slam dunk that many claim. 

In the end, you can argue all day that what Trump and others did in trying to overturn the election ought to be criminal, and you’d be right, but what ought to be criminal sometimes technically isn’t. Sometimes what’s written in the law books doesn’t map perfectly onto what occurred, because those who enacted the code couldn’t foresee every bizarre eventuality that real life sometimes offers.

Similar caution applies to concerns expressed by the grand jury in its report “that some witnesses may have lied under oath during their testimony,” as McBurney put it. That’s troubling, but again, what grand jurors perceive as lying under oath may be difficult or impossible for a prosecutor to prove as perjury beyond a reasonable doubt.

It’s natural to assume that months of investigation and testimony under oath by dozens of witnesses has produced evidence not yet available to the rest of us, but we don’t know that. And if my reading proves wrong, if Willis chooses not to pursue indictments of Trump and others, it will be important to accept that outcome as fair under the law. By now, she and her colleagues know a lot more than the rest of us and have done their due diligence. They will have earned the right to have such a difficult decision respected.

But I just don’t think that’s going to happen.

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